Citation Nr: 0810435
Decision Date: 03/28/08 Archive Date: 04/09/08
DOCKET NO. 03-25 213A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for service-connected dorsolumbar strain.
REPRESENTATION
Appellant represented by: Sandra E. Booth, Attorney at
Law
ATTORNEY FOR THE BOARD
A. Cryan, Associate Counsel
REMAND
The veteran served on active duty for training (ACTDUTRA)
from July 1998 to January 1999.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
The Board denied the veteran's claim in May 2006. In
November 2007, the veteran's attorney and VA's General
Counsel filed a joint motion with the United States Court of
Appeals for Veterans Claims (CAVC) to vacate the Board's
decision and remand the case. CAVC granted the motion. The
basis for the motion included VA's failure to issue
statements of the case (SOCs) as to denials of service
connection for thoracic strain and cervical spine strain.
The case was also remanded for VA to obtain a new medical
examination, and to assist the veteran in obtaining private
orthopedic and chiropractic records.
The Board notes that the veteran submitted a statement in
October 2002 expressing his disagreement with an August 2002
denial of service connection for thoracic strain. Although
service connection was thereafter granted in January 2003 for
thoracolumbar strain, it appears that the parties to the
joint motion agreed that the claim of service connection for
thoracic strain had not been resolved by the January 2003
action. It was agreed that a statement of the case is now
required. The claimant also submitted a statement in
December 2003, which has now been construed as an expression
of disagreement with a denial of service connection for
cervical spine strain. The Board will therefore remand the
issues of entitlement to service connection for thoracic
strain and cervical spine strain for issuance of a SOC. See
Manlincon v. West, 12 Vet. App. 238, 240 (1990). (These
issues have not been listed on the title page of this
decision because, absent a substantive appeal, the Board does
not have jurisdiction. Bernard v. Brown, 4 Vet. App. 384
(1994); Hazan v. Gober, 10 Vet. App. 511 (1997).)
The veteran was afforded a VA examination in June 2005. The
parties to the November 2007 joint motion have agreed that
the examiner failed to reconcile her findings with the
results of a March 2002 VA examination which revealed
evidence of minimal scoliosis of the lumbar spine, or with VA
outpatient treatment reports that reflected complaints of
back pain. The appellant should be afforded another VA
examination in order to assess the current status of his
dorsolumbar strain.
The Board notes that invoices from Arlington Chiropractic
Clinic, Ohio Orthopedic Center of Excellence, Wedgewood
Urgent Care, Riverside Methodist Hospital, Coshocton County
Memorial Hospital, and Mount Carmel Health have been
associated with the claims file. No private treatment
reports from any of the above-listed private facilities were
associated with the claims file.
VA outpatient treatment reports dated through January 2006
were associated with the claims file. Any VA records
promulgated after January 2006 should be associated with the
claims file.
Accordingly, the case is REMANDED for the following action:
1. Re-examine the issues of
entitlement to service connection
for thoracic strain and cervical
spine strain addressed by the
veteran in statements dated in
October 2002 and December 2003. If
no additional development is
required, prepare a SOC in
accordance with 38 C.F.R. § 19.29
(2007), unless any matter is
resolved by granting the benefit
sought, or by the veteran's
withdrawal of the NODs. If, and
only if, the veteran files a timely
substantive appeal, the issues
should be returned to the Board.
2. The veteran should be informed
as to the requirements for the award
of a rating and an effective date.
See Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006), aff'd,
Hartman v. Nicholson, 483 F.3d 1311
(Fed. Cir. 2007). Veterans Claims
Assistance Act of 2000 notice should
be issued that comports with the
recent holding in Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008).
3. Contact the veteran to obtain
the names and addresses of all
medical care providers who have
treated him for a back disability.
After securing the necessary
releases, obtain those records that
have not previously been secured
including private chiropractic
records from Arlington Chiropractic
Clinic and private treatment records
from Ohio Orthopedic Center of
Excellence, Wedgewood Urgent Care,
Riverside Methodist Hospital,
Coshocton County Memorial Hospital,
and Mount Carmel Health. Any
pertinent records from VA prepared
after January 2006 should also be
obtained. If any records are
unavailable, a negative reply should
be included in the claims file and
the claimant should be told of the
result. He should be given
opportunity to obtain the records.
4. After the above-requested
development is accomplished, arrange
for the veteran to undergo a VA
spine examination by a physician
with appropriate expertise to
determine the current degree of
disability experienced by the
veteran due to his service-connected
dorsolumbar strain. The examiner
should be requested to reconcile
his/her findings with the results of
a March 2002 VA examination, a June
2005 VA examination, VA outpatient
treatment reports, and any private
treatment reports that reflect
treatment for his dorsolumbar
strain. All indicated studies,
tests, and evaluations deemed
necessary should be performed and
the results noted in the examination
report. All functional losses due
to pain, fatigability, weakness,
etc., should be equated to
limitation of motion beyond the
limitations shown clinically.
(The appellant is hereby notified
that it is his responsibility to
report for scheduled examination and
to cooperate in the development of
the case, and that the consequences
of failure to report for a VA
examination without good cause may
include denial of the claim. 38
C.F.R. § 3.655 (2007).)
5. Thereafter, review the claims
file to ensure that the requested
development has been completed. In
particular, review the requested
examination report to ensure that it
is responsive to and in complete
compliance with the directives of
this remand, and if it is not, take
corrective action.
6. After undertaking any other
development deemed appropriate, re-
adjudicate the issue on appeal. If
the benefit sought is not granted,
the veteran and his representative
should be furnished with a
supplemental statement of the case
and afforded an opportunity to
respond before the record is
returned to the Board for further
review.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
veteran until he is notified by VA. The veteran has the
right to submit additional evidence and argument on the
matter the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2007).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2007).